Psystar, fined $5K, files Snow Leopard suit in Florida

As time marches on to the actual courtroom showdown between Apple and Psystar …

Though the official discovery deadline has passed and trial is set to begin promptly next January, there is still plenty of legal wrangling going on between Apple and unlicensed Mac clone maker Psystar. Psystar was ordered to pay $5,000 to Apple's lawyers due to some discovery shenanigans, but Psystar is alleging "discovery misconduct" on Apple's part as well. Additionally, Psystar has filed a parallel lawsuit in Florida district court, hoping to short circuit the current case in California and have a court rule that it can legally sell its "Open" computers with Snow Leopard pre-installed.

In our last look at this lawsuit a few weeks ago, we noted that Psystar had been essentially admonished for using bankruptcy as a stall tactic in the pending lawsuit with Apple. After a stay on that proceeding was lifted, Psystar withdrew its bankruptcy petition. The judge in that case granted the dismissal, with provisions that prevented Psystar from again filing bankruptcy for a period of one year and would not be granted an automatic stay should it attempt to file for Chapter 7 liquidation.

Fresh out of bankruptcy and still owing its creditors thousands of dollars, Psystar claimed it was ready to go after Apple with "guns blazin'" and new counsel Kiwi Camara, most well known for defending Jamie Thomas-Rassert against the RIAA (and losing big time). Then came allegations that Psystar was tampering with evidence. A hearing was held on August 20, though the transcript of that proceeding isn't available publicly. During that hearing, however, Judge Alsup requested additional briefs on the matter and ordered Psystar to pay $5,000 of Apple's legal fees. While the exact reasoning behind the penalty isn't known, a lawyer consulted by Mac Observer noted that it "indicates that Psystar is in trouble with the court."

But Psystar also has its own complaints about discovery. First, it complained to Judge Alsup that SVP of worldwide marketing Phil Schiller was "unprepared" to answer specific questions about Apple's profits and profit margins. Apple answered that complaint by noting that specifics of its profit margins—beyond what it reports in its quarterly and annual SEC filings—is a matter of secrecy and competitive advantage for Apple. It also noted that such information is not required by law to determine statutory or other damages. Psystar answered that it is relevant in establishing what harm Psystar might be causing Apple. That issue has yet to be resolved.

Furthermore, Psystar has filed an additional brief accusing Apple of "discovery misconduct." While that brief is also heavily redacted, an attached exhibit shows a Terminal screen revealing a listing of image files that are clearly marked as evidence. The brief suggests that Psystar obtained additional evidence after the discovery phase due to Apple's "misconduct" and that it should not be penalized for the late discovery.

That's not the end of Psystar's "blazin'" offense, however. Just after the release of Snow Leopard, Psystar filed a new lawsuit in the Southern District of Florida, asking that court to declare that Psystar can legally obtain and install Snow Leopard on its computers and sell them, despite the fact that the license for Snow Leopard clearly states that it is an upgrade for previous versions of Mac OS X. Not only does it bring up many of the same issues as the pending case in California, it also rehashes the antitrust issues that Judge Alsup already dismissed early on. Psystar makes the claim that Snow Leopard is totally different from Leopard, and Psystar uses a totally different process to get it to install on non-Apple hardware, necessitating a new case.

Apple quickly filed a motion for a hearing with Judge Alsup on the matter, arguing that it is an attempt to make an end run around the current proceedings, and that the issues make no difference based on which version of Mac OS X is in question.

Psystar should not be allowed to re-assert in a new action the antitrust claims that this Court dismissed and that Psystar chose not to amend. Nor should Psystar be permitted to simultaneously litigate, in another forum, the same subject matter pending in this case and before this Court. Permitting this blatant forum shopping is not only prejudicial to Apple in that it will
delay the determination of matters at issue in this case, but it is also a waste of judicial resources and will unnecessarily create the possibility of inconsistent results.

A hearing on that issue is scheduled for this Friday, with Apple hoping that Judge Alsup with either combine the cases or move to have the other case dismissed. If the cases are combined, Apple asks for an additional short discovery process to address any new complaints from Psystar, in the hopes that the case won't drag on any more than it already has.

It's hard to say what Psystar's hope is in this matter. Judging from the filings in its bankruptcy, it doesn't appear to be selling enough of its Mac clones—which the company admits is the majority of its business—to pay its mounting legal fees. Why Psystar would want to stall the case in California is anyone's guess. The only rational conclusion is Psystar is hoping that it would get a favorable decision in Florida, and could use that in the California case. We suspect that this tactic won't be allowed to fly.

However, Psystar's claims just seem odd. First, they used one method to install Leopard, then they supposedly wrote a new one from scratch (but not really, as at least some of it is based on boot123). In the FL suit, they claim they use some other method entirely to install Snow Leopard. What, of course, they won't say, and I suspect if they ever do it will be redacted from the court records.

There's some other crap about how they used a "master install disk image" (which I'm pretty sure is admitting to violating copyright) and that a bunch of other OSx86 stuff they were accused of using without permission (e.g. netkas' code) somehow "accidentally" ended up on the master image and may have "inadvertently" ended up on production machines. So either Psystar is lying or incompetent—neither scenario gives me any confidence in the company.

Honestly, it's a chore to try and piece together anything resembling coherent logic from their court filings.

The legal system is going to get pissed at Psystar very shortly, no judge in his right mind is going void a legal copyright, it would cripple the entire copyright system. In this case there should be a law against stupidity, because thats what Psystar is and Apple is going to hand them their butt on a platter.

No, its not a copyright issue, or at least, not a simple one. If it were, it would have been settled by injunction months ago. If it is a copyright issue, its a very complicated one. Its primarily a EULA issue. Whether this is a copyright issue is a complicated question.

It is, I agree, very puzzling what Psystar, or rather its attorneys, are up to. It does seem that the argument is very similar to one that was already tried and failed.

Psystar's attorneys are morons. If they wanted to forum-shop, they should have filed a motion to remove along with their response and affirmative defenses to Apple's initial complaint. This was covered in the first day of my Civil Procedure class in law school!

Which makes me wonder why Apple filed in state court, rather than U.S. court due to citizenship jurisdiction and amount in question issues (obviously Apple is going to go for more than $75,000 in damages.)

Originally posted by Ally:No, its not a copyright issue, or at least, not a simple one. If it were, it would have been settled by injunction months ago. If it is a copyright issue, its a very complicated one. Its primarily a EULA issue. Whether this is a copyright issue is a complicated question.

How about, "It appears to be a copyright issue to most people and it is argued to be a license issue by a few people"? Copyright very clearly covers software. It also clearly covers copies (as made on HDD or RAM), so copying an OS without authorization is also clearly covered by copyright. In fact this occurred over 20 years ago when Formula tried selling a Pineapple PC and lost on copyright and trademark infringement.

The only differences is that Psystar is using purchased copies of Apple's OS where Formula was not, but Psystar is modifying the OS where Formula was not. Formula was clearly infringing, while Psystar is clearly modifying.

Originally posted by Ally:No, its not a copyright issue, or at least, not a simple one.

It will become one as soon as Apple will have enough evidence to says that the bootloader or any other part of the distributed OS is a modified version of the Apple's one.

That's how they kill the last clones.

Actually they killed cloning by not renewing licensing agreements to cover Mac OS 8, and while they were at it they bought PowerComputing (arguably the most successful Mac cloner). It was not as easy then to get Mac OS working on non-Apple hardware without Apple's help. Though it is technically easier for Psystar to get Mac OS X installed and running on non-Apple hardware, they have never been granted a license to install Mac OS X on any hardware nor sell it to consumers.

Originally posted by Parry:Psystar's attorneys are morons. If they wanted to forum-shop, they should have filed a motion to remove along with their response and affirmative defenses to Apple's initial complaint. This was covered in the first day of my Civil Procedure class in law school!

Agreed

quote:

Which makes me wonder why Apple filed in state court, rather than U.S. court due to citizenship jurisdiction and amount in question issues (obviously Apple is going to go for more than $75,000 in damages.)

This is a federal court, though, correct? Please explain the difference between filing in a particular federal district vs a US court, if there is one. That's a detail I wasn't aware of.

@ lochness - I concur wholeheartedly! Fight the case on its merits not through maneuvering and running to different states and other foolishness. The lawyer is an attention whore and Psystar is desperate. $10 bucks says they are stalling to hide further facts about their funding, where did they get startup funds from, its obvious they are not some dude in his garage, me smells a conspiracy.

I was kind of hoping that Psystar would come out on top when I heard of a company selling Mac clones. Now I just kind of wish they'd die in a fire. I no longer feel that they have any credible arguments and are just clogging up the judicial system to stay in business.

Originally posted by foresmac108:Actually they killed cloning by not renewing licensing agreements to cover Mac OS 8

Actually, that's not quite true. The way Steve told it, Apple offered to license Mac OS 8 but not at a price the clone makers were willing to accept. Rather than growing the Mac market share, the clones were cannibalizing Apple itself proving the licensing fees were too small to make up for lost hardware sales margins.

quote:

and while they were at it they bought PowerComputing (arguably the most successful Mac cloner). It was not as easy then to get Mac OS working on non-Apple hardware without Apple's help.

At least the early clones were based on Apple reference designs. The clone killing had to come when it did or Apple would've been further undercut by move towards more commodity technologies (with the move to the Common Hardware Reference Platform (CHRP) specification) and away from Apple's Old World designs.

The 20c clone episode was quite different. In order to install Classic on a machine, you really did need to make a clone of a Mac. Macs in those days were unique. They had different main boards, different bus, different processor, and they had the famous ROM chip. It was this last that in the end prevented anyone from offering alternative Mac hardware.

Now the issue is that there is no such thing as a Mac hardware clone. Macs are in fact clones of standard x86 machines. The issue is not that Psystar or anyone else is a clone maker in the sense that this was usually used. The issue is they are installing OSX on perfectly standard hardware.

Apple already has moved to commodity hardware. The issue is now about whether it can restrict installation of OSX to commodity hardware which it has sold.

Originally posted by Ally:Apple already has moved to commodity hardware. The issue is now about whether it can restrict installation of OSX to commodity hardware which it has sold.

Not quite. The EFI coding is unique to Apple. If, as Apple and many others claim, Psystar modifies the boot load in order to install Mac OS X on their "clones" then this is not only a violation of the EULA it is a violation of copyright (duplicating and modifying code).

And why can't Apple choose to whom it sells its software? If Apple licensed some clone vendors and refused to license others then Psystar might have a point. Since Apple does not license to *anyone* who can Psystar claim is being unfairly hurt?

Originally posted by Ally:The 20c clone episode was quite different. In order to install Classic on a machine, you really did need to make a clone of a Mac. Macs in those days were unique. They had different main boards, different bus, different processor, and they had the famous ROM chip. It was this last that in the end prevented anyone from offering alternative Mac hardware.

Now the issue is that there is no such thing as a Mac hardware clone. Macs are in fact clones of standard x86 machines. The issue is not that Psystar or anyone else is a clone maker in the sense that this was usually used. The issue is they are installing OSX on perfectly standard hardware.

Apple already has moved to commodity hardware. The issue is now about whether it can restrict installation of OSX to commodity hardware which it has sold.

earl gray: "So your interpretation is that the battle over legality of the EULA is finally under way?"

Maybe. The battle over just this particular clause of the EULA may be under way. And similar clauses placing restrictions on use in the way of restricting the environment into which the user installs a retail copy, including for instance the clause in MS Office EULA which forbids installation on anything but Windows, thus forbidding installation under Wine or Crossover. The prohibition on installing Vista Home onto a virtual machine.

Yes, it will be interesting if the case is decided on this issue.

Fidndit: The EFI coding is unique to Apple. If, as Apple and many others claim, Psystar modifies the boot load in order to install Mac OS X on their "clones" then this is not only a violation of the EULA it is a violation of copyright (duplicating and modifying code).

This is not at all clear. EFI is a standard. To write one's own EFI code is perfectly lawful. Modifying the boot load to install OSX would also be perfectly lawful and need not involve any use of anything Apple has written. It would involve running some code one has written and not running other code which Apple has written. This is not a violation of copyright. But in case it did involve copying and modification, it is still the kind of thing that S117 explicitly permits in order to do an installation. Yes, it would be breaking the EULA. But it would not be breaking copyright law.

You also ask "And why can't Apple choose to whom it sells its software?"

I think it probably can, within limits. It probably cannot discriminate against buyers on grounds of race, color, creed or national origin, but it is certainly under no obligation to sell at retail if it chooses not to. The issue here is not whether Apple 'licenses' people. The issue here is whether having sold people like Psystar, and there are several others, or ordinary end users, as many retail copies of OSX as they want, it can then restrict what they install them on. Its not about whether they have to sell at retail, or sell to anyone in particular at wholesale, or sell at wholesale at all.

OC is arguing that copyright gives you the right to specify, for retail copies of software which a customer has bought, the environment into which he may or may not install that copy. We have gone over this before at great length. I am not aware of his ever having cited a case which proves this.

If that is the only claim to uniqueness, its not much, is it? We have completely standard commodity hardware, which happens to support EFI. This is unusual but not unique. Then, we have a chip with some encryption soldered onto one of the boards. Yes, that is unique. Its tiny.

Its not the same thing at all as the 20c case, where you had a whole different machine architecture, and you had to duplicate that in order to run Classic. Like, you had to use a PPC processor. You had to have a main board with Nubus, wasn't it? Then you had ADB, and a different graphics standard. Right now you can buy pretty much any Core2 machine of a reasonable spec, and use boot132 to install OSX on it.

You can insist on calling this the act of cloning Macs, but it is not what the term came from, and its better described as installing OSX on a PC not bought from Apple. Because the concept of cloning comes from the days when it meant doing a great deal more than this, it meant producing hardware of a sort that you could not buy. There are probably a hundred million machines a year shipped nowadays that will install and run OSX with the aid of boot132. Taking one of them and doing it, well, its hardly cloning a Mac in any sense that the original term meant.

@Ally: You have my argument wrong. I argue that a copyright owner has the right to specify when a customer can make a copy... the environment is irrelevant except insofar as it is an allowance not already explicitly denied by copyright.

I repeat: Copyright says the customer doesn't have the right to copy. The license grants that power.

Re: clones. I think you forget that the original IBM PC was common off the shelf commodity hardware... And the ONLY thing that separated a PC from a clone was the BIOS.

That's one chip. Not exactly much different than EFI+decryption... less, if you think about it.

Originally posted by OrangeCream:...Psystar is modifying the OS where Formula was not. Formula was clearly infringing, while Psystar is clearly modifying...

If this is simply a matter of 'modifying' then that is where the legal fun appears. We all modify our OS in one way or another. A court gets the fun task to decide how far someone is allowed to modify a stock OS and if the Apple EULA is being violated. This, of course, could have some interesting ramifications outside of this particular case.

Originally posted by OrangeCream:...Psystar is modifying the OS where Formula was not. Formula was clearly infringing, while Psystar is clearly modifying...

If this is simply a matter of 'modifying' then that is where the legal fun appears. We all modify our OS in one way or another. A court gets the fun task to decide how far someone is allowed to modify a stock OS and if the Apple EULA is being violated. This, of course, could have some interesting ramifications outside of this particular case.

Yes, but we are all expressly allowed to modify our OS because the license grants it.

Here's another one: The GPL forbids us to modify or distribute GPL software unless we agree to the terms, the terms being we must provide source when requested. We can modify but not distribute, and distribute but not modify, but if we do both we must provide the source. If you violate that term then copyright prevents you from using the software, at all.

Guess what the Apple license does? It says you can install it on a system labeled by Apple. Violate that term and copyright prevents you from using the software as well.

1) Psystar has accepted that they'll lose and go out of business, and are just being assholes to keep notoriously shy Apple in court as long as possible.

2) Psystar is in fact owned (via some sort of proxy or shell corporation) by people with connection to Apple, and teh Steve is actually pulling their strings in order to secure Apple a victory in the case and set a precedent to prevent other companies from selling Mac clones.

You have the right to make any copies necessary to doing an installation, you don't need any permissions in the Eula to do one. This is in S117. No ifs and or buts, you have that right under copyright law. At least as long as installation is necessary to use, because what you have really is the right to make any copies which are essential to use.

You have the right to make any copies necessary to doing an installation, you don't need any permissions in the Eula to do one. This is in S117. No ifs and or buts, you have that right under copyright law. At least as long as installation is necessary to use, because what you have really is the right to make any copies which are essential to use.

That's all correct. And the only reason we have to think that S117 applies is your reasoning that:1. you really are the owner of the software, despite Apple's thinking you're a licensee2. installing on arbitrary hardware is 'essential' to your using the software.

And you've got no case-law to support those opinions, either. At least you didn't the last time we went through that whole mess.

At least be honest when you're recapping previous information, particularly when you're demanding case-law citations from people whose opinions you disagree with.

You have the right to make any copies necessary to doing an installation, you don't need any permissions in the Eula to do one. This is in S117. No ifs and or buts, you have that right under copyright law. At least as long as installation is necessary to use, because what you have really is the right to make any copies which are essential to use.

However, it is generally accepted that the loading of software into a computer constitutes the creation of a copy under the Copyright Act.

Also:

quote:

Section 117 allows “the ‘owner’ of a copy of a computer program to make or authorize the making of another copy” without infringing copyright law, if it “is an essential step in the utilization of the computer program” or if the new copy is “for archival purposes only.” One of the grounds for finding that 117 did not apply was the court’s conclusion that the permanent copying of the software onto the silicon chips was not an “essential step” in the utilization of the software because the software could be used through RAM without making a permanent copy. The court stated:

RAM can be simply defined as a computer component in which data and computer programs can be temporarily recorded. Thus, the purchaser of software desiring to utilize all of the programs on the diskette could arrange to copy the software into RAM. This would only be a temporary fixation. It is a property of RAM that when the computer is turned off, the copy of the program recorded in RAM is lost.

This is crucial and applicable:1) Copies for convenience aren't protected by 117. The copy, on the HDD, is a copyright violation as it is the creation of a copy AND it is not protected by 117 because you can use the software without pre-installing it. In other words distributing the copy on the HDD alongside the copy on the original disc is infringement.

This view is also supported by the case against CleanFlicks in which they were not allowed to edit a DVD without the consent of the copyright owner.

2) Fair use rights aren't defensible for profit. Just because an end user with a boxed copy of OS X may be technically allowed to use their software doesn't mean that Psystar can. This is supported by the case against MyMp3.com in which the judge states,

quote:

stripped to its essence, defendant's 'consumer protection' argument amounts to nothing more than a bald claim that (the) defendant should be able to misappropriate (the) plaintiff's property simply because there is a consumer demand for it. This hardly appeals to the conscience of equity.

and

quote:

making mechanical copies for commercial use without permission from the copyright owner

.

The copy on the HDD is 100% a mechanical copy for commercial use without permission from the copyright owner.

(a) Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for theowner of a copy of a computer program to make or authorize the making ofanother copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. (b) Lease, Sale, or Other Transfer of Additional Copy or Adap­tation.—Any exact copies prepared in accordance with the provisions of thissection may be leased, sold, or otherwise transferred, along with the copy fromwhich such copies were prepared, only as part of the lease, sale, or other transferof all rights in the program. Adaptations so prepared may be transferred onlywith the authorization of the copyright owner.

An essential step It is an essential step in the use of all non-live versions. That is, OSX, XP, Office, many but not all Linux distros. So its lawful in the case of OSX to install. You have that right just by buying your copy.

make or aothorize the making I can authorize Psystar or anyone I choose to do this for me.

Making of Additional Copy or Adaptation by Owner of Copy I have to be the owner of the copy. Which Softman proves that I am if I have just gone into store and bought retail.

OC, either cite a case, with proper references, or stop making these assertions. There is no case law to show that the maker can dictate into what environment a retail copy is installed by use of copyright law.

Whether he can do it by EULA is a different issue.

As far as copyright law is concerned, I may lawfully go into the business of installing OSX on non-Mac machines, as long as I do so with copies that are the property of the customer at the time I do it. Or for that matter, installing copies of Vista Home into a virtual machine, or installing copies of Office under Wine.

The basic issue in all these cases is the same (meaning, OSX, Office, Vista Home). When you buy a retail copy, copyright law gives you the right to make any copies which are essential to using it. If its not a live version, as (for instance) Slax is, then this gives you the right to install, thus making copies. It also gives you the right to authorize someone else to do this on your behalf, if you are the owner of the retail copy that is being installed.

Now there is no doubt that in some circumstances you may enter into a contract where you renounce some or all of your rights under copyright law.

The question is whether click through in a EULA is one of those cases, and whether the right to install into any environment is one that can be renounced in this way.

It is clear that not all clauses in EULAs are enforceable, just as not all terms and conditions in any contract of sale are necessarily enforceable. There are particular difficulties with EULAs in many jurisdictions: they are contracts of adhesion, the terms are not presented at the time of purchase but are assented to in a separate transaction, the contract so entered into is without consideration, they impose post-sales restraints on use.

We will see, or must hope we see, in one of these cases. Its a very narrow issue. A decision upholding the right of the EULA to restrict the installation environment will have far reaching consequences. It will, for instance, permit a CAD supplier to forbid installation into environments where competitive products are installed. It could even prohibit the installation of products into the environment where the retail copy is installed. it could permit MS, for instance, to forbid the installation of mdbtools, once you have installed Access. For Autocad to prohibit you from installing file format converters once you have installed its products.

It will be, if it happens, very far reaching indeed, although its a narrow point of law.

But this is about EULAs and what they can do in this particular context of the installation rights of the buyer, its not about copyright. Nor is it about wholesale or contract licensing. Its just about retail copies. It will have minimal or no effects on companies that do not sell at retail, but only enter into bona fide licensing agreements, whichever way it goes.

OC, either cite a case, with proper references, or stop making these assertions. There is no case law to show that the maker can dictate into what environment a retail copy is installed by use of copyright law.

Because I don't think the issue is about environment there's no way for me to cite case law.

You need to prove to me that this is an environment issue. There are multitudes of cases which grant the power of control post sale to the copyright owner. I've already made my case this is a copyright and infringement issue and cited four cases in my defense:

1) Peak vs MAI where a third party has no right to use another party's software because they don't own it.

3) CleanFlicks vs DGA where CleanFlicks was modifying content and creating a second copy without copyright owner's consent.

4) MyMP3.com vs UMG where MyMP3.com was creating copies of CDs for third parties without copyright owner's consent.

1) Applies because this case defined S117, because they were using MAI's software to do maintenance on the computer. This case says making a copy into RAM is copyright infringement and that Psystar's copy on the HDD is copyright infringement. The decision rests on whether Psystar is owner or licensee; if they are a licensee of OS X then they lose.

2) Applies because the case is nearly identical. Formula was selling Apple clones and it was ruled copyright infringement due to using Apple's software without Apple's consent. The decision rests on whether Psystar is owner or licensee; if they are a licensee of OS X then they lose.

3) Applies because the case defines copyright infringement when a copy is modified and fixed. If the modification Psystar makes to allow OS X to run is indeed infringement then they lose. Psystar is not allowed to modify OS X (no fair use) because they are a profit company.

4) Applies because the case defines copyright infringement acting on the behalf of a third party (the customer). The judge ruled essentially that MyMP3.com could not use fair use for profit and that making a copy was still making a copy and infringed on the copyright owner's rights. This ruling would mean Psystar has no right to install on a HDD for any reason at all without Apple's consent.

If you want to argue EULA again I quote this power of copyright from the GPL:

quote:

You may not propagate or modify a covered work except as expresslyprovided under this License. Any attempt otherwise to propagate ormodify it is void, and will automatically terminate your rights underthis License

.

I claim that Apple has the exact same power under copyright. Psystar may not propagate or modify OS X except as expressly provided under the end user license. Any attempts automatically terminate their rights to the software under the end user license.

If it can't be upheld for Apple then all GPL software becomes public domain because they cannot hold anyone to the terms of the license. Either all copyright owners can control use of the software under copyright, or no one can.

(a) Making of Additional Copy or Adaptation by Owner of Copy.—Notwithstanding the provisions of section 106, it is not an infringement for theowner of a copy of a computer program to make or authorize the making ofanother copy or adaptation of that computer program provided: (1) that such a new copy or adaptation is created as an essential step in the utilization of the computer program in conjunction with a machine and that it is used in no other manner, or (2) that such new copy or adaptation is for archival purposes only and that all archival copies are destroyed in the event that continued possession of the computer program should cease to be rightful. (b) Lease, Sale, or Other Transfer of Additional Copy or Adap­tation.—Any exact copies prepared in accordance with the provisions of thissection may be leased, sold, or otherwise transferred, along with the copy fromwhich such copies were prepared, only as part of the lease, sale, or other transferof all rights in the program. Adaptations so prepared may be transferred onlywith the authorization of the copyright owner.

An essential step It is an essential step in the use of all non-live versions. That is, OSX, XP, Office, many but not all Linux distros. So its lawful in the case of OSX to install. You have that right just by buying your copy.

make or aothorize the making I can authorize Psystar or anyone I choose to do this for me.

Making of Additional Copy or Adaptation by Owner of Copy I have to be the owner of the copy. Which Softman proves that I am if I have just gone into store and bought retail.

OC, either cite a case, with proper references, or stop making these assertions. There is no case law to show that the maker can dictate into what environment a retail copy is installed by use of copyright law.

Whether he can do it by EULA is a different issue.

As far as copyright law is concerned, I may lawfully go into the business of installing OSX on non-Mac machines, as long as I do so with copies that are the property of the customer at the time I do it. Or for that matter, installing copies of Vista Home into a virtual machine, or installing copies of Office under Wine.

This comment was edited by Ally on September 04, 2009 09:31

I was just checking that you still don't have any case-law to support your reasoning, and you still don't. Thanks for confirming that you're still holding your opponents to a higher standard of evidence than you hold yourself to.

hpsgrad, I'm not holding anyone to any particular standard. I am just asking them to give some support to their assertion that contrary to what the statute says, I do not have the right to make copies in way of installation where installation is essential to use. All the support I need is the words of the statute. The support you guys need is something to indicate that the statute has been overruled, interpreted in some different way, whatever.

I think it means what it says, and means it so self evidently that since it has been passed it has not been challenged.

As to Peak, this case was decided in 1993. In 1998 section 117 was amended to allow copying for purposes of repair. The point of the Peak case was that the defendant had activated a computer with a legal copy of the program installed, and in doing so, copied the program into RAM for purposes of repair. The case ruled in 1993 that the copyright owner had the right to prohibit this activity on copyright grounds. However, in 1998 this section was amended by the insertion of clauses giving the legal owner of the software the right to make copies needed for purposes of repair.

(c) Machine Maintenance or Repair. — Notwithstanding the provisions of section 106, it is not an infringement for the owner or lessee of a machine to make or authorize the making of a copy of a computer program if such copy is made solely by virtue of the activation of a machine that lawfully contains an authorized copy of the computer program, for purposes only of maintenance or repair of that machine, if —

(1) such new copy is used in no other manner and is destroyed immediately after the maintenance or repair is completed; and

(2) with respect to any computer program or part thereof that is not necessary for that machine to be activated, such program or part thereof is not accessed or used other than to make such new copy by virtue of the activation of the machine.

(d) Definitions. — For purposes of this section —

(1) the “maintenance” of a machine is the servicing of the machine in order to make it work in accordance with its original specifications and any changes to those specifications authorized for that machine; and

(2) the “repair” of a machine is the restoring of the machine to the state of working in accordance with its original specifications and any changes to those specifications authorized for that machine.

So, what can we conclude from Peak? That in 1993, and before the later amendments which are in effect today, if you wanted to activate a machine and thus make a copy into RAM for purposes of repair, you could be forbidden to do that under copyright law. But that after 1998, you could not be forbidden to do that under copyright law.

If you can supply a case which shows that you need permission of the copyright holder to load a program of which you've bought a retail copy into memory for purposes either of repair or as an essential step in use, just produce it. Peak is not such a case, given that it depended on a previous state of the law. If Peak were brought today, the judgment would go in favor of the defendant. You are quite wrong to say that Peak defines 117. It defines the state of the law on a previous version of 117, which is of historical interest only.

Originally posted by Ally:hpsgrad, I'm not holding anyone to any particular standard. I am just asking them to give some support to their assertion that contrary to what the statute says, I do not have the right to make copies in way of installation where installation is essential to use. All the support I need is the words of the statute.

Demonstrably false, since there is no definition of 'owner' or 'essential' in the statute. And since your claims about ownership rest on case-law which is contradicted by other case-law (and is IMO clearly misapplied), your claims about ownership are not at all certain. You refuse to admit any possibility that this is the case, however.Your claims about what's 'essential' are similar in their lack of case-law support.

That you dismiss out-of-hand alternate interpretations of S117 (based on different interpretations of 'owner' and 'essential') is not my problem. Nor is your blatant hypocracy, really. I'm just pointing it out to everyone here, as a public service. No thanks necessary.